James D Azzar v. City of MacKinac Island ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
JAMES D. AZZAR, UNPUBLISHED
May 23, 2017
Plaintiff-Appellant,
v No. 331308
Mackinac Circuit Court
CITY OF MACKINAC ISLAND and LC No. 2013-007434-CH
D AND S NORTH REAL ESTATE, LLC,
Defendants-Appellees.
Before: SAWYER, P.J., and MURRAY and GLEICHER, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s separate orders granting summary disposition
to each defendant, the city of Mackinac Island (the “City”) and D and S North Real Estate, LLC
(“D and S”), in this action for violation of a residential zoning ordinance. We affirm.
I. FACTS
Defendant D and S owns Lake Huron waterfront property in the City on which it operates
a commercial dock, referred to as the Beaver Dock parcel. The property is located in an area
zoned R-1, for low density residential use and uses accessory to residential purposes. Plaintiff
owns residential property adjacent to the Beaver Dock parcel. Mission Point Resort is located
across the highway from the Beaver Dock parcel. Historically, the Beaver Dock has been used
to deliver freight for the Mission Point Resort and its predecessor on that property. The dock has
also been used to load and unload vehicles and equipment when other loading areas are
unavailable. These uses, which predate the enactment of the R-1 zoning classification, are
recognized by the City as grandfathered nonconforming uses of the Beaver Dock property. In
1991, the City advised Mission Point Resort in writing of its position that the nonconforming
prior usage allowed the property to be used “to [haul] freight and supplies for use at the [Mission
Point] resort and occasional loading and offloading of vehicles and equipment,” but that any
other usage would require application for a zoning variance. The letter did not restrict any of the
recognized activities to any particular portion of the Beaver Dock parcel, nor did it restrict the
type or quantity of any freight or supplies used by Mission Point, or define any traffic restriction
that would be in effect during the periods of “occasional loading and offloading.”
In 2012, D and S’s predecessor in interest, Lanisplace, entered into a five-year lease with
Mission Point Resort, allowing Mission Point Resort to use the Beaver Dock. Plaintiff thereafter
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filed this action against Lanisplace and the City to enjoin what he claimed was Lanisplace’s
improper expansion of the nonconforming use of the parcel, in particular the storage of refuse
and construction materials on the property. Plaintiff requested a writ of superintending control
against the City, and abatement of the alleged nuisance by Lanisplace. Lanisplace and the City
eventually resolved the issues relating to the storage of materials on the property. Plaintiff
sought to amend his complaint to add a claim that Lanisplace’s use of motor vehicles, in
particular a tractor, violated the city’s motor vehicle ordinance. Plaintiff’s amended complaint
again alleged a claim for superintending control against the City, as well as several nuisance
claims against Lanisplace, and requested declaratory relief.
While the case was still pending, in 2014, the City encountered a crisis over the
availability of commercial dock space due to a dispute involving one of the City’s other docks
and icing conditions that limited access to the island. As a result, the City entered into a
licensing agreement with Mission Point Resort to allow freight companies to temporarily use the
Beaver Dock from May 15 to July 15, 2014.1 The City agreed to pay Mission Point Resort the
amount it received from the sublicense freight companies, plus an additional 10 percent for the
duration of the licensing period. Subsequently, although plaintiff did not again seek to amend
his complaint, he challenged this additional commercial usage of the Beaver Dock as an
unlawful expansion of the prior nonconforming use of the property and requested that the trial
court enjoin it. Following plaintiff’s unsuccessful attempt to obtain a preliminary injunction, the
trial court, in separate orders, granted summary disposition in favor of the City and D and S,
thereby dismissing plaintiff’s claims.
II. MOOTNESS
We hold that plaintiff’s claims against the City are moot. “[A] court should, on its own
motion, recognize and reject claims that it does not have the power to decide [including moot
ones.]” People v Richmond, 486 Mich. 29, 35 n 2; 782 NW2d 187 (2010). Whether a case is
moot is a question that we review de novo. See Thomas M Cooley Law Sch v Doe 1, 300 Mich
App 245, 254; 833 NW2d 331 (2013). In Richmond, 486 Mich. at 34-35, our Supreme Court
explained:
It is well established that a court will not decide moot issues. This is
because it is the principal duty of this Court . . . to decide actual cases and
controversies. That is, [t]he judicial power . . . is the right to determine actual
controversies arising between adverse litigants, duly instituted in courts of proper
jurisdiction. As a result, this Court does not reach moot questions or declare
principles or rules of law that have no practical legal effect in the case before it.
Although an issue is moot, however, it is nevertheless justiciable if the issue is
one of public significance that is likely to recur, yet evade judicial review. It is
universally understood . . . that a moot case is one which seeks to get a judgment
on a pretended controversy, when in reality there is none, . . . or a judgment upon
some matter which, when rendered, for any reason, cannot have any practical
1
This licensing agreement was later extended for another 60 days.
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legal effect upon a then existing controversy. Accordingly, a case is moot when it
presents nothing but abstract questions of law which do not rest upon existing
facts or rights.
In general, because reviewing a moot question would be a ‘purposeless
proceeding,’ appellate courts will sua sponte refuse to hear cases that they do not
have the power to decide, including cases that are moot. Whether a case is moot
is a threshold issue that a court addresses before it reaches the substantive issues
of the case itself. [Citations, quotation marks, and footnote omitted; alteration in
original.]
See also B P 7 v Bureau of State Lottery, 231 Mich. App. 356, 359; 586 NW2d 117 (1998).
Plaintiff argues that the City unlawfully expanded the prior nonconforming usage of the
Beaver Dock parcel when it entered into the licensing agreement that allowed the Beaver Dock
to be temporarily used for public commercial freight. However, the licensing agreement expired
on September 15, 2014. The City did not seek to renew the agreement to operate the Beaver
Dock as a public commercial freight dock in 2015 or 2016, and so Beaver Dock is not currently
being used as a public commercial freight dock. Consequently, there is no meaningful relief this
Court can provide because the licensing agreement that allegedly expanded the nonconforming
use of the dock has expired by its terms, without being renewed. Any decision by this Court
holding that the City was not permitted to enter into the licensing agreement would constitute “a
judgment upon some matter which, when rendered, for any reason, cannot have any practical
legal effect upon a then existing controversy.” Richmond, 486 Mich. at 34-35 (citations and
quotation marks omitted).2
Further, plaintiff has not demonstrated that the matter is justiciable because it is “likely to
recur, yet evade judicial review.” Id. at 34 (citation and quotation marks omitted). Plaintiff has
not provided any indication that the City intends or is contemplating to enter into a future
licensing agreement to use the Beaver Dock as a commercial dock. The circumstances that led
to the creation of the licensing agreement no longer exist. While it is possible that the
circumstances creating a need for commercial dock space may arise again in the future, plaintiff
has not demonstrated that it is “likely” to recur. Accordingly, we agree with the City that
plaintiff’s claims against it are moot.3
III. SUBSTANTIVE CLAIMS
2
As we noted earlier, the original complaint about the debris scattered by the dock area was
quickly resolved by the City and Lanisplace. To the extent that plaintiff’s nuisance claims are
premised upon this debris, those claims are likewise moot.
3
As to the allegation in the amended complaint regarding the use of a motor vehicle without a
permit, plaintiff does not argue this issue on appeal and it is not addressed in his request for
relief. We will therefore not address that issue. However, at oral argument before this Court, it
appeared that the issue also may be moot because the current owner does have a permit.
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With respect to plaintiff’s nuisance claims against D and S for its alleged improper
expansion of the nonconforming use of the Beaver Dock parcel, plaintiff properly observes that
“one of the goals of local zoning is the gradual elimination of nonconforming uses.” Century
Cellunet of Southern Mich Cellular, Ltd Partnership v Summit Twp, 250 Mich. App. 543, 546;
655 NW2d 245 (2002). However, “[a] prior nonconforming use is a vested right to continue the
lawful use of real estate in the manner it was used prior to the adoption of a zoning ordinance”
and “[a] zoning ordinance cannot operate to oust the property owner of his vested right even
though the ordinance is reasonable.” Gackler Land Co, Inc v Yankee Springs Twp, 427 Mich.
562, 573-574; 398 NW2d 393 (1986) (quotation marks omitted); see also Heath Twp v Sall, 442
Mich. 434, 439; 502 NW2d 627 (1993) (“A prior nonconforming use is a vested right in the use
of particular property that does not conform to zoning restrictions, but is protected because it
lawfully existed before the zoning regulation’s effective date.”). However, the expansion of a
prior nonconforming use is generally not permitted. Edw C Levy Co v Marine City Zoning Bd of
Appeals, 293 Mich. App. 333, 342; 810 NW2d 621 (2011). “The continuation of a
nonconforming use must be substantially of the same size and the same essential nature as the
use existing at the time of passage of a valid zoning ordinance.” Id., citing Norton Shores v
Carr, 81 Mich. App. 715, 720; 265 NW2d 802 (1978). It is also restricted to the area that was
nonconforming at the time of the ordinance. Id.; see also Patchak v Lansing Twp, 361 Mich. 489,
497-499; 105 NW2d 406 (1960).
Despite the numerous permutations of his arguments and claims below, plaintiff now
argues that the use of a “loop road,” and apparently particularly the west portion of it, constitutes
an impermissible expansion of the prior nonconforming use. This theory was not set forth in
plaintiff’s amended complaint, so it is not a proper part of this lawsuit. MCR 2.111(A) and (B);
Weymers v Khera, 454 Mich. 639, 654; 563 NW2d 647 (1997). In any event, to the extent that
the nonconforming use is limited to the area that was nonconforming at the time the ordinance
was enacted, the entire parcel is nonconforming, because it is being used for a commercial, rather
than residential, purpose. Further, it is the operation of a commercial dock on residentially zoned
property that constitutes the nonconforming use, not the access road or roads from the dock to
the street. Plaintiff has pointed to nothing in the township’s zoning ordinance that would prevent
access from the street to the lake or dock using any part of either lot 41 or lot 42 if the dock was
used for a residential rather than commercial purpose. The dock has not expanded or moved. In
addition, the 1991 letter from the City to Mission Point Resort contains no recognition of a
limitation of use to any particular part of the Beaver Dock parcel.
Moreover, the record does not support plaintiff’s latest claim that the prior
nonconforming use involved only lot 42, such that lot 41 cannot be used in the future. The
evidence establishes that more than one portion of the Beaver Dock parcel, including the entirety
of the “loop road,” had historically been used to transfer goods from the dock to the road. We
note that the photographic and survey evidence indicates that a portion of this road lies within lot
41 as it passes a shed on the east side of a reverse L-shaped building. More significantly,
however, it is clear that at least part of lot 41 was, until plaintiff’s earlier lawsuit, used for
transportation purposes. In order to move freight along the “Beaver Dock Road” adjacent to the
lake in front of plaintiff’s property, Lanisplace would have had to use part of lot 41. This
undercuts plaintiff’s argument that the trial court was required to find that the prior
nonconforming use involved only a portion of the Beaver Dock parcel. At one point, many parts
of both lot 41 and lot 42 were used. Accordingly, the trial court did not err in ruling that plaintiff
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failed to establish a question of fact concerning an improper expansion of the nonconforming
use.
Affirmed. Having prevailed in full, defendants may tax costs. MCR 7.219(A).
/s/ David H. Sawyer
/s/ Christopher M. Murray
/s/ Elizabeth L. Gleicher
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